NZ votes against indigenous peoples' rights at the UN as Declaration on the Rights of Indigenous Peoples is adopted by overwhelming majority

14 September 2007

The UN Declaration on the Rights of Indigenous Peoples was adopted overnight at the UN General Assembly by a vote of 143 in favour, 4 against, and 11 abstentions. The NZ government maintained its contradictory and reprehensible position on the Declaration, speaking against it just prior to the vote. NZ was one of the four states which voted against the adoption of the Declaration - Australia, Canada and the US were the others.

Below is the UN News report on this long overdue event, and below that the UN Department of Public Information summary of what the NZ government representative said prior to the General Assembly vote.

13 September 2007 – The General Assembly today adopted a landmark declaration outlining the rights of the world’s estimated 370 million indigenous people and outlawing discrimination against them – a move that followed more than two decades of debate.

The United Nations Declaration on the Rights of Indigenous Peoples has been approved after 143 Member States voted in favour, 11 abstained and four – Australia, Canada, New Zealand and the United States – voted against the text.

A non-binding text, the Declaration sets out the individual and collective rights of indigenous peoples, as well as their rights to culture, identity, language, employment, health, education and other issues.

The Declaration emphasizes the rights of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions and to pursue their development in keeping with their own needs and aspirations.

It also prohibits discrimination against indigenous peoples and promotes their full and effective participation in all matters that concern them, and their right to remain distinct and to pursue their own visions of economic and social development.

Sheikha Haya said "the importance of this document for indigenous peoples and, more broadly, for the human rights agenda, cannot be underestimated. By adopting the Declaration, we are also taking another major step forward towards the promotion and protection of human rights and fundamental freedoms for all."

But she warned that "even with this progress, indigenous peoples still face marginalization, extreme poverty and other human rights violations. They are often dragged into conflicts and land disputes that threaten their way of life and very survival; and, suffer from a lack of access to health care and education."

In a statement released by his spokesperson, Mr. Ban described the Declaration’s adoption as "a historic moment when UN Member States and indigenous peoples have reconciled with their painful histories and are resolved to move forward together on the path of human rights, justice and development for all."

He called on governments and civil society to ensure that the Declaration’s vision becomes a reality by working to integrate indigenous rights into their policies and programmes.

Ms. Arbour noted that the Declaration has been "a long time coming. But the hard work and perseverance of indigenous peoples and their friends and supporters in the international community has finally borne fruit in the most comprehensive statement to date of indigenous peoples’ rights."

The UN Permanent Forum on Indigenous Issues estimates there are more than 370 million indigenous people in some 70 countries worldwide.

Members of the Forum said earlier this year that the Declaration creates no new rights and does not place indigenous peoples in a special category.

Ambassador John McNee of Canada said his country was disappointed to have to vote against the Declaration, but it had "significant concerns" about the language in the document.

The provisions on lands, territories and resources "are overly broad, unclear and capable of a wide variety of interpretations" and could put into question matters that have been settled by treaty, he said.

Mr. McNee said the provisions on the need for States to obtain free, prior and informed consent before it can act on matters affecting indigenous peoples were unduly restrictive, and he also expressed concern that the Declaration negotiation process over the past year had not been "open, inclusive or transparent."

"Rosemary Banks (New Zealand), speaking in explanation of vote, noted that New Zealand was one of the few countries that from the start had supported the elaboration of a declaration that promoted and protected the rights of indigenous peoples. In New Zealand, indigenous rights were of profound importance, and were integral to its identity as a nation State and as a people. New Zealand was unique: a treaty concluded at Waitangi between the Crown and New Zealand’s indigenous peoples in 1840 was a founding document of the country. Today, New Zealand had one of the largest and most dynamic indigenous minorities in the world, and the Treaty of Waitangi had acquired great significance in the country’s constitutional arrangements, law and Government activity.

The place of Maori in society, their grievances and disparities affecting them were central and enduring features of domestic debate and Government action, she said. New Zealand also had an unparalleled system for redress, accepted by both indigenous and non-indigenous citizens alike. Nearly 40 per cent of the New Zealand fishing quota was owned by Maori, as a result. Claims to over half of New Zealand’s land area had been settled. For that reason, New Zealand fully supported the principles and aspirations of the Declaration on the Rights of Indigenous Peoples. The country had been implementing most of the standards in the Declaration for many years. She shared the view that the Declaration was long overdue, and the concern that indigenous peoples in many parts of the world continued to be deprived of basic human rights.

New Zealand was proud of its role in improving the text over the past three years, turning the draft into one that States would be able to uphold and promote, she said. It was, therefore, a matter of deep regret that it was unable to support the text before the Assembly today. Unfortunately, New Zealand had difficulties with a number of provisions of the text. In particular, four provisions in the Declaration were fundamentally incompatible with New Zealand’s constitutional and legal arrangements, the Treaty of Waitangi, and the principle of governing for the good of all its citizens, namely article 26 on lands and resources, article 28 on redress, articles 19 and 32 on a right of veto over the State.

The provision on lands and resources could not be implemented in New Zealand, she said. Article 26 stated that indigenous peoples had a right to own, use, develop or control lands and territories that they had traditionally owned, occupied or used. For New Zealand, the entire country was potentially caught within the scope of the article, which appeared to require recognition of rights to lands now lawfully owned by other citizens, both indigenous and non-indigenous, and did not take into account the customs, traditions and land tenure systems of the indigenous peoples concerned. The article, furthermore, implied that indigenous peoples had rights that others did not have. The entire country would also appear to fall within the scope of article 28 on redress and compensation. The text generally took no account of the fact that land might now be occupied or owned legitimately by others, or subject to numerous different or overlapping indigenous claims.

Finally, the Declaration implied that indigenous peoples had a right of veto over a democratic legislature and national resource management, she said. She strongly supported the full and active engagement of indigenous peoples in democratic decision-making processes. New Zealand also had some of the most extensive consultation mechanisms in the world. But the articles in the Declaration implied different classes of citizenship, where indigenous had a right to veto that other groups or individuals did not have.

While New Zealand took international human rights and its international human rights obligations seriously, it was unable to support a text that included provisions that were so fundamentally incompatible with its democratic processes, legislation and constitutional arrangements. The text was clearly unable to be implemented by many States, including most of those voting in favour. The Declaration was explained by its supporters as being an aspirational document, intended to inspire rather than to have legal effect. New Zealand did not, however, accept that a State could responsibly take such a stance towards a document that purported to declare on the contents of the rights of indigenous people. The history of the negotiations on the Declaration and the divided manner in which it had been adopted demonstrated that the text did not state propositions that were reflected in State practice, or which would be recognized as general principles of law."